Instructions

ZOOM IN by clicking on the page. A slider will appear, allowing you to adjust your zoom level. Return to the original size by clicking on the page again.

MOVE the page around when zoomed in by dragging it.

ADJUST the zoom using the slider on the top right.

ZOOM OUT by clicking on the zoomed-in page.

SEARCH by entering text in the search field and click on "In This Issue" or "All Issues" to search the current issue or the archive of back issues respectively. If you would like to clear the your search, click on your browser refresh button.

PRINT by clicking on thumbnails to select pages, and then press the
print button.

SHARE this publication and page.

ROTATE PAGE allows you to turn pages 90 degrees clockwise or counterclockwise.Click on the page to return to the original orientation. To zoom in on a rotated page, return the page to its original orientation, zoom in, and
then rotate it again.

CONTENTS displays a table of sections with thumbnails and descriptions.

ALL PAGES displays thumbnails of every page in the issue. Click on
a page to jump.

12 POLICY • Vol. 30 No. 4 • Summer 2014–2015
IS AUNTY EVEN CONSTITUTIONAL?
reason to be conscious of the privacy, or supposed
privacy, of telegrams. Twenty-two years earlier, he
had been offered and had accepted a seat on the
very court he was now addressing. This, however,
followed an inopportune exchange of telegrams
with his brother-in-law, who was acting on behalf
of Attorney General Billy Hughes. Asked his
position on states’ rights, Piddington had answered:
“In sympathy with supremacy of Commonwealth
powers.” Hughes was trying to stack the court
with like-minded centralists. When the telegram
exchange leaked to the press, public outcry forced
Piddington to do the right thing and resign before
even taking his seat.
Piddington’s later career was reputable, while
marked by involvement in left-wing activist causes.
He chaired a Commonwealth commission in
1919 on the basic wage, reporting that it should
be increased dramatically; he wrote radical articles
for Smith’s Weekly; he ran for political office a few
times, becoming a close associate of volatile, left-
wing New South Wales premier Jack Lang; and
he served as president of the state’s Industrial
Relations Commission. In 1934, he undertook
an ideological pilgrimage to the Soviet Union and
came back full of praise.
He became prominent in a cause célèbre that
same year when the government tried to deport
Czechoslovakian-born communist agitator Egon
Kisch, who was on a speaking tour in Australia.
The government forced Kisch to submit to a
dictation test of “a passage of fifty words in length
in a European language,” as allowed under the
Immigration Restriction Act. Since the text used
was in Scottish Gaelic, Kisch unsurprisingly did not
pass. When the issue went all the way to the HCA,
Piddington defended Kisch—successfully.
Ratio decidendi non est
Piddington was probably too diplomatic to say so,
but on hearing the final decisions of the court, he
could have noted that the honourable gentlemen
of the majority had contradicted each other.
Taking the equates line, Starke J held that “the
Commonwealth [had] full authority to legislate
with respect to wireless telegraphy, including radio
broadcasting.” But Justices Rich, Evatt and Latham
all held it was not telegraphy but telephony that
encompassed broadcasting.
What is interesting about this is that, because
there is no majority ratio decidendi, there can be
little precedent set by R v Brislan. By a concept
of law known as stare decisis, the reason given by
the majority in one case sets legal precedent and
thus becomes a valid reason for ruling similarly
in future cases with similar circumstances. But if
there is a multitude of reasons, including some
which contradict, what do you do?
If you arbitrarily choose a ratio by one or
two majority judges, then why should that take
precedence, even over an opinion by one or two
dissenting judges? This problem was finally solved
in 1994 by the full bench of the HCA in Re Tyler;
Ex parte Foley, where it held that a judgement
does not have a ratio if there is no common
majority reasoning.
Of the six judges in Brislan, no four declared
the genus argument or the equates argument for any
common one of postal, telegraphic, or telephonic.
Legally speaking, government radio broadcasting
is constitutional because the High Court has said
it is—even though there is no binding reason
that accompanies that 1935 decision.
The Dissenter
Fortunately for the reputation of Australian
jurisprudence, there was at least one member of
the High Court in 1935 who was not dismissive
of the appellant because of her low station nor
intimidated by the high station of her opponents,
both government and private.
This was no less a figure than that great
Australian jurist Sir Owen Dixon, who according
to Robert Menzies was considered by at least
two Lord Chancellors to be “the greatest judicial
lawyer in the English-speaking world.” Dixon
was granted honorary degrees by both Oxford
and Harvard universities and a memorial prize by
Yale University “for services to mankind,” and
Sir Paul Hasluck described Dixon as having
possessed “the most distinguished mind
I have ever been privileged to know
among fellow Australians.”